it is wrong; if it is wrong. Most men are more interested in their lawsuits than in anything else, and would be glad, for their own guidance, to understand them if they could. But when a client, so wishing to see how and where he stands, cross-examines his attorney, he is referred to counsel at the first difficulty. The attorney says: "Sir, this is a more complex matter than I should like to advise you upon without assistance. It requires greater learning and more ability than mine; I could not pretend to give such an opinion as you ought to have on so important a transaction." And at first the client is rather pleased. He does not, perhaps, much like the cost of paying for the aid of counsel, but he is much pleased at being mixed up in matters so abstruse and important that their aid is necessary. At any rate, he now thinks that he shall fully understand his case; that he shall really know why he is fighting his suit, and be able to judge for himself whether he ought to compromise or persist in it. On this ground he readily enough consents to "take the opinion," and looks forward eagerly to receiving it. But when it comes he is almost sure to be disappointed. He finds, no doubt, a plain piece of advice that he ought to do so and so, and perhaps a categorical statement that so and so is the law; but he finds no reasons; he is obliged to believe what the oracle says; he is no nearer to a comprehension of his case than before. Nor can his solicitor help him. He says: "I am sure, sir, I cannot take it upon me to say why counsel gave that opinion; but as we have asked for it, and paid for it, I suppose I must act on it." Now, if the opinion recommends the spending of much money, the client may not quite like this. If he could, he would like to get hold of "counsel," and cross-examine him; he would like to treat him plainly and familiarly, as he does his attorney. He pays one and he pays the other, and he thinks he ought to get as much as he can out of both. But, in fact, he cannot. Counsel is secluded in a remote and inaccessible shrine, and you cannot effectually get at him. Even if the client gets a "conference," he has to pay for it; and counsel treats him as if he was a curious intellectual "specimen," perhaps from the provinces. Any question he may ask is answered with a kind of condescension, but counsel thinks plainly, "What nonsense it is this fellow trying to understand his own case! I am paid to speak to him, and I will speak to him, but I will not speak to him very much." And the client who has penetrated into the sacred "chambers," probably finds that he has been put off with some vague and cautious observations, which do not seem to him very consistent with each other, and all which he cannot but think happen to evade the worst difficulty, even if they were not meant to do so. As he comes away he calculates: "I paid so much a word for that interview, and what have I gained by it?" But it is only in the rarest cases that the client

is so enterprising or so intrusive as this. In nine hundred and ninety-nine cases out of a thousand the client never sees counsel at all. He only gets a copy of the oracular opinion from the attorney, and peruses it several times, wondering at its brevity, but still a little admiring its decision. Gradually he comes to feel a confidence in it, and is content to act on it. But when he advances some way further in the business, and is beginning to reflect on the expense, it occurs to him as strange that if the matter is as plain as the counsel tells him it is, the other side should be proceeding with so much confidence, and not attempting to strike their flag. Accordingly, he goes to his attorney, and asks, "How is it that the other side are not frightened? You showed them Mr. A. B.'s opinion-his very distinct opinion. I certainly imagined they would be rather inclined to yield after that." On which, perhaps with a little smile, the attorney tells him: "Why, the fact is, that the other side have consulted counsel also. They have been to C. D., a very eminent man in Lincoln's Inn, a gentleman I have often consulted myself, and he advises them that they are quite right. They have sent me his opinion. Here it is; perhaps you would like to take it home with you." And so the client finds that there is "oracle against oracle;" that the god of "Old Square" speaks quite differently from the god of "New Square;" and goes home dissatisfied and bewildered. The courts of law are blocked with suits which counsel advised to be begun, which counsel advised to be defended, and in which neither plaintiff nor defendant likes to yield now, because both have spent so very much money.

I do not mean that all the uncertainty would be remedied by a better constitution of the legal profession. No doubt some uncertain cases there always must be; new varieties of complication arise daily, and require novel decisions. Unquestionably, too, other parts of our bad legal education make the law more uncertain than otherwise it would be. But it is plain that the artificial splitting of the law trade into two halves much aggravates the practical difficulty of getting at the law. "Opinions" are the opprobrium of the legal profession. Everybody knows that an "opinion is to be had on almost every side of every question. "Show me your case," it is often said, "and I write you your opinion." Now, this could hardly be if the solicitor, the man whom the client pays, had the responsibility of advising him. His interest would be to come as near to the truth as he could, because he would be responsible for the advice he gave. But now he gets a shelter under the distant "barrister;" he does not feel ashamed when the case is decided against him, because Mr. X. Y., a name in the papers, and a man you cannot get hold of, said you would win. And the barrister has no responsibility to the client either. The client cannot come and

say, "You advised me to sue; you told me I was going to win; yet you see I have lost." The man you can scold did not advise you, and the man who did advise you, you cannot scold.

There are other and very delicate points in this subject. I believe most English barristers, and most English solicitors, to be very honourable men; but we all know that there are some black sheep in both halves of the trade. When, years since, I was reading law, I had laid for me a peculiar rule for pleasing the less honest sort of attorneys: "Always," said a very experienced man, "always recommend proceedings, and then you will be sure to succeed." His notion was that a barrister who promoted "costs" would thrive with attorneys who live by costs. I quite believe that it would be a libel to ascribe such motives to most solicitors or most counsel; still one cannot help seeing how well the present system helps those who act on such motives. The ultimate adviser, the barrister, has no relation to the ultimate payer, the client; he has no motive to care to please him. He wants to please the attorney, for it is by the attorney's favour that he lives. What pleases some attorneys is present income. The barrister, therefore, who upon fair reasons, and within decent limits, always promotes costs and contention, will always please at least those attorneys. In case of gross failure, the natural penalty is the client's wrath; but we protect the attorney against this by enabling him to blame "counsel," and we protect "counsel" by immuring him in distant dignity.

It may be said that it would be quite useless for clients commonly to see counsel, for the points which counsel have to decide on are so technical that the client cannot understand them. But ought they to be so technical? Ought not the main gist of all cases to be intelligible to men of business interested in them, and anxious to attend to them? In matter of fact, I believe that almost all the law of moneyed property is now intelligible to careful men of that sort; and if the law of landed property is not intelligible, it is only because that law is bad. Mysteries in practical affairs are very dangerous; the more so because, when they once exist, many quiet, unimaginative people cannot help saying and believing that they are inevitable and necessary. But any one who rouses his mind to ask in a specific case, How does this law come to be so unintelligible? will find that the reasons for it belong to some bygone time, and that now it wants to be altered and fitted to modern life. Nothing will ever simplify law so much as the making lawyers explain it to nonlawyers. It will be a great gain when all clients ask about their case anxiously, and when "counsel" have to explain it clearly.

But the bifurcation of our legal profession is not the only way in which our peculiar system of law training makes the law uncertain. The education of our barrister, such as it was before

explained, has as distinctly that effect as if it were designed on purpose. That education we That education we saw to be an education of unselected detail. "Papers" which accidentally came into chambers were placed before the learner, and from them he educated himself. Casual instances were given him to learn from as they came, and from them he learnt what he did learn. By such a training we form excellent practitioners of detail, wonderful "case" lawyers. Years ago, an accomplished specimen of the results of such training used to answer every argument that in any sense purported to be general, or to be derived from principle, with an impatient question, But have you got a case, Mr. him, and to all equally characteristic tion, each transaction was isolated. not the decision of an analogous case, but the decision of an identical "It is of no use having an opinion," he would add, “unless you can quote an authority for it," and by an authority he meant some recorded suit in which the specific question had been submitted to a judge and decided by him. To this species of lawyer nothing is certain which is not "within the four corners," as it used to be said, "of a case," and a recent case.

one.

? have you got a case?" To specimens of our legal educaHe wanted to see in the books,

Accordingly, when a new case is laid before such persons, one which in a material degree possesses new conditions, or which varies in a patent particular from the standard authorities, it is a matter of accident which way they decide. The most prosperous and most cautious say, unless they are belied, that "the matter is doubtful," and then incline, more or less confidently, towards the side for which they are asked to advise. But in all cases the point, if new, is to the mass of lawyers very doubtful. An argument of "theory," as they speak, has no weight with them.

And when we examine the matter, we find that it ought to have no weight with them. A most rigid and careful arguer from principle, a really great lawyer, afterwards on the bench, used to say, with the emphasis of a past generation, "That's the law-I know that is the law; but the d-d judges won't decide it so." And so, in fact, our system works. A great part of our law is really judge-made law. The courts always profess to be deciding on some ground of past precedent. But very often, and of necessity in novel circumstances, this is nothing but profession. The judges are really making the law when they are said to be declaring it; and if they declared it on solid grounds of principle, and for reasons which could with any sort of confidence be assigned and predicted beforehand, this judicial legislation would be tolerable. In fact, a great part of the best law in the world was so made by great judges who considered principle and followed out principle. But a mere successful practitioner, who began to learn by "papers" and "cases," who has

thriven on practice, who has for years sneered at principle, is the last man, when he becomes a judge, to make a judge of "principle." His whole life has been spent in an opposite treatment of things; his whole mind has been invested in that treatment. You do not expect a plain cook to turn philosophical chemist; and it is as little rational to expect a barrister of cases and instances to be changed on a sudden to a judge of great principles and broad doctrines. And unless he does so change, his decision is uncertain. If the case is really new, if an identical precedent is not on the file, the judge trained on mere practice, the judge with no head for principle, is confused. There is nothing to guide him in the past decisions, and he has all his life tried to be guided, and boasted that he is guided only, by past decisions. Accordingly, in so many cases it is but a "solemn toss up" how the judges decide. They are really making new law, but they are not making it on principle; they fear principle. They are guided by fancied analogies and past precedents—one judge relying on one analogy and another on another, but none having anything substantial.

The training for judicial legislation should surely be of two sorts; first, a knowledge of how, in other systems of law, the same or analogous cases have been dealt with. Yet here most of our practising lawyers are deficient. As the writer I have before quoted observes: "From the contemporaneous existence in England of two systems of law, the civil and the common law, applied to different branches, there are no doubt English lawyers, though comparatively few in number, who know something of the Roman law; but who knows anything of the laws of the modern Continental States? And when is even the Roman law systematically made a necessary part of the education of an English common lawyer? We often hear American decisions quoted; but do we, as a body, possess any thorough knowledge of American practice, or of the points on which it agrees with or differs from our own? Is not, in fact, our whole knowledge of Roman, Continental, or American laws a thing occasionally got up for a special purpose, and laid aside when that pose has been answered?" No doubt we have some real jurists; the age which produced Mr. Maine's "Ancient Law" could not be wholly deficient in such; but the mass of the law trade look to the cases in the books, and that is why we suffer from "the grotesque decisions" of our judges, as Mr. Phillimore happily called them, "in special pleading, the construction of wills, and the law of real property." Or again, the training for judicial legislation should be one of jurisprudence in the highest sense of the jurisprudence which Burke must have been thinking of when he called it the "pride of the human intellect." It must be a knowledge of the reasons which make laws good or bad, eligible or ineligible, in given cases. But

pur